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TUPE Model Answer (Employment) IS THERE A RELEVAN T TRANSFE R??
Business transfer Reg 3(1)(a): o Two limb test:
? Is there an economic entity comprising of an organised group of resources?
? This is a question of fact for the Tribunal who must apply the Cheeseman factors:
? Consider whether the business has its own workforce, premises, assets, equipment, customer base, goodwill etc.
? Apply briefly
? Has that entity transferred?
? Spijkers states that the decisive criterion is whether the entity retains its identity post-transfer; 7 factors in deciding this (should be considered in conjunction): 1) The type of undertaking or business - is the business labour intensive or dependent on its assets? E.g. window fitting would be labour intensive as a lot of importance is attributed to the skills of the workforce 2) The transfer of tangible assets - have a significant amount of assets transferred?
3) The value of intangible assets (goodwill) - goodwill, skills and experience of workers 4) Whether the majority of staff are being taken by the new employer - ECM v Cox states that it is not fundamental that the majority of staff transfer - it must however be a significant number 5) The transfer of the circle of customers - is customer list transferred?
6) The degree of similarity between activities before and after the transfer - is similar business being carried on?
7) The duration of any interruptions in those activities - is the interruption minimal?
Service provision change: o Three types:
? Contracting out Reg 3(1)(b)(i) - Where activities cease to be carried out in-house and an outside contractor comes in to carry out those activities
? Second generation contracting Reg 3(1)(b)(ii) - Where a contractor is carrying out activities and the organisation changes the provider of those activities to a different contractor
? Contracting in-house Reg 3(1)(b)(iii) - Where a contractor is carrying out activities and the organisation decided to run
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